Henry v. Trotto
Full Opinion (html_with_citations)
Ordered that the final order is affirmed insofar as appealed from, without costs or disbursements.
Election Law § 16-102 (2) requires a proceeding to invalidate a designating petition to be instituted within 14 days after the last day to file such designating petition. In order to acquire personal jurisdiction, the method of service directed in the order to show cause must be reasonably calculated to give notice to the necessary parties within the statutory time period (see Matter of Contessa v McCarthy, 40 NY2d 890, 891 [1976]; Matter of Silkowski v Cacase, 308 AD2d 425 [2003]). The appellants contend that service of the order to show cause on Cameron Alden by first-class mail on July 23, 2008, the next to last day on which service could be made, was not reasonably calculated to give notice to the necessary parties within the statutory time period. We disagree.
The petitioners showed that the mailing was made from the United States Post Office in Babylon, located a little more than eight miles from Aldenās Islip address. The petitioners produced a 2006 United States Postal Service report to the United States Government Accountability Office indicating that āMost First-Class Mail is to be delivered in 1 day when it is sent within the local area served by the destinating mail processing centerā and ā2 days when it is sent within the āreasonable reachā of surface transportation,ā i.e., āwithin a 12-hour drive timeā (U.S. Government Accountability Office, Report to Congressional Requesters, U.S. Postal Service: Delivery Performance Standards, Measurement, and Reporting Need Improvement, at 11 [GAO-06-733, July 2006]). Additionally, the petitioners demonstrated that a āSpecifications of Objectionā they mailed from
The Supreme Court correctly invalidated those signatures that were printed on the designating petitions where signatories had signed their registration forms in script and there was an absence of any credible evidence from them or subscribing witnesses attesting to the identity of those signatories (see Election Law § 5-210 [5] [k] [xi]; § 6-134 [5], [13]; Matter of Jaffee v Kelly, 32 AD3d 485 [2006]; Matter of Rabadi v Galan, 307 AD2d 1014 [2003]). To prevent fraud and allow for a meaningful comparison of signatures when challenged, the signature on the designating petition should be made in the same manner as on that signorās registration form (see Election Law § 6-134 [10]).
We agree with the Supreme Courtās determination that the testimony of the subscribing witness to sheet 70 of the designating petition was not credible and that he failed to adequately explain an alteration he made as to the date he witnessed two signatures (see Matter of Kraham v Rabbitt, 11 AD3d 808, 809-810 [2004]; Matter of Berman v Weinstein, 64 AD2d 940, 941 [1978]).
Election Law § 6-132 (2) requires a subscribing witness to list his or her current residence so as to permit the rapid and efficient verification of signatures within the restrictive time periods imposed by the Election Law and thereby facilitate the discovery of fraud (see Matter of Curley v Zacek, 22 AD3d 954, 956 [2005]; Matter of Zobel v New York State Bd. of Elections, 254 AD2d 520, 522 [1998]; see also Matter of McLiverty v Lefever, 133 AD2d 720, 721 [1987]). Here, the subscribing witness to sheet 13 listed his residence as a post office box and further stated, in his āstatement of witness,ā that he resided in the Town of Islip, which is not satisfactory (see Election Law § 6-132 [2]; Matter of Liepshutz v Palmateer, 112 AD2d 1101, 1103
While the Supreme Court preliminarily sustained the petitionersā objection to the signature appearing on sheet 114, line 7, it later overruled that objection. Thus, the appellants are not aggrieved by that determination. Similarly, the appellants are not aggrieved by the courtās consideration of the petitionersā single supplemental objection to the subscribing witness of sheet 82, as the court overruled that objection.
In light of our determination, we need not consider the appellantsā remaining contentions. Mastro, J.P., Fisher, Santucci, Eng and Chambers, JJ., concur. [See 2008 NY Slip Op 51727(11).]